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Davis v. G.m. & O.r.r. Co.

FEBRUARY 19, 1971.




APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH E. FLEMING, Judge, presiding.


The plaintiff, Cephus Davis, brought this action under the Federal Employee's Liability Act for injuries allegedly sustained due to the negligence of the defendant, Gulf, Mobile & Ohio Railroad Co. The case was tried to a jury and the plaintiff had recovery of $7,500.00. The Circuit Court of St. Clair County entered judgment upon the verdict. The plaintiff has appealed.

The facts which occasioned this lawsuit are as follows: The plaintiff, a 60 year old man, was an employee of the defendant and had been so employed for over 20 years as a laborer performing general task maintenance and repair work. The plaintiff, on May 25, 1967 was so engaged in general repair work on the defendant's track in the Venice yards, as one of a crew of four to replace a stock rail. The plaintiff's injury occurred while the crew was replacing the rail. The crew had removed the spikes and braces from one side of the rail but the rail did not come loose. While the plaintiff was attempting to free the rail, a co-worker struck the rail with a spike mall and the rail was sprung out of position. The end of the rail struck the plaintiff's left foot and came to rest upon it. The rail was not loose because heat expansion had caused tension in the track. The release of the tension caused the track to spring. The plaintiff suffered an abrased area one inch by 3/4 inch on his left instep. There was no fracture or dislocation of any bone or joint in his foot or ankle.

The plaintiff physically is a very large man standing slightly over 6 feet in height and weighing almost 300 lbs. at the time of the injury. Because of his size he had had some medical problems with his feet and legs prior to the injury.

After the rail had been lifted from the plaintiff's foot, the plaintiff drove himself to see a Doctor Chalfin. Dr. Chalfin had treated the plaintiff and the plaintiff's wife on occasions before May 25, 1967, for illness not associated with the plaintiff's employer. Dr. Chalfin treated the injury by giving the plaintiff a shot to prevent infection, dressing the wound and requesting the plaintiff to go the next day to the Missouri Pacific Hospital in St. Louis for X-rays. The plaintiff had the X-rays taken and the results were negative. Dr. Chalfin continued to treat the plaintiff for several days, primarily for swelling.

The plaintiff resumed work on July 26th after receiving clearance from the Missouri Pacific Hospital to so do. The Missouri Pacific Hospital is operated by several railroad unions for the benefit of railroad employees. In all, the plaintiff was off work for 43 days for which his wages would have been slightly in excess of $1,000.00. The plaintiff's work record since his return has been comparable to the period of time preceding the injury.

On August 28, 1967, the plaintiff, still complaining of the effects of the injury, went to see a Dr. Deyton of St. Louis. Dr. Deyton treated the plaintiff from August 28, 1967 until January 7, 1968 (the last treatment before the trial). In all, Dr. Deyton saw the plaintiff 19 times. At the time of the trial, the plaintiff still complained of intermittent pain in the foot associated with work and activity. The injured foot was also larger in size than the uninjured foot. Dr. Deyton's prognosis for the recovery of the injured foot was poor. The Doctor testified that the plaintiff would have disability by reason of the injury as the pain in his foot and ankle would increase as time went on and that the plaintiff would have difficulty in performing a full day's work. The Doctor further testified that there would be further medical treatment and expenses. However, the Doctor was not allowed to testify as to the cost of the treatment.

On cross-examination, over objection, the Doctor was questioned concerning his relationship with plaintiff's counsel and referrals that plaintiff's attorney had made to the Doctor. Questions were also asked regarding specific individuals and if the Doctor had testified for them in lawsuits.

The trial was concluded on its second day at 3:52 P.M. The plaintiff having no further evidence to present at that time requested a continuance until the following morning. The court denied the request for a continuance whereupon the defendant did not present evidence. After ruling on motions for directed verdicts, the court recessed for closing arguments the following court day.

In their closing arguments, both counsel made reference to the fact that plaintiff's attorney had sent the plaintiff to consult Dr. Deyton. There was no testimony of the witnesses to support this statement of both counsel.

The plaintiff has brought this appeal. There are no questions raised on the pleadings or instructions. The plaintiff urges that the court erred in several particulars.

The plaintiff first asserts that it is improper cross-examination to call the Doctor's attention to other cases he has testified in and other patients he had treated and other lawsuits pending wherein the Doctor is treating the patient. The defendant asked a series of questions of Dr. Deyton which had the purpose of showing that the expert witness is frequently in the employ of counsel as such circumstances may well create bias on the part of the expert witness. Plaintiff contends that the defendant's questions went beyond the bounds which allow the defendant to inquire into the possible bias of the witness through inquiry into facts and circumstances which would create such a bias on the part of the expert witness.

The initial question propounded by defendant was "You do have occasion frequently, don't you to see patients that are referred to you by Mr. Chapman or his office, to testify on behalf of those patients who are either claimants or patients in lawsuits?" The Doctor answered, "I have received referrals from Mr. Chapman. Whether it would be proper to say frequent is a matter of interpretation of words". Defendant's counsel then inquired, "Could you give the court and jury some idea about how many such patients you see referred to you by Mr. Chapman, or his office, in the last 2 or 3 years?" to which plaintiff responded, "No Sir". The defendant then inquired if the doctor had treated 10 specific individuals that had had or presently had suits against railroads who were also represented by plaintiff's counsel, over plaintiff's continuing objection. In response to the specific inquiries in eight of the ten cases, the Doctor remembered the patient or the name of the patient, did not know who had referred them to him, and in two cases did not remember the person. In only one of the seven cases, in which the inquiry was made, did the Doctor remember testifying in a case against a railroad company. On redirect the Doctor testified that he had seen and treated a number of railroad men with injuries, did not remember whether they had been injured in their employment and stated that generally they had been treated extensively elsewhere. Defendant offered no evidence to support the inference of bias which the specific inquiries raised. Plaintiff made no motion to strike the questions and answers nor sought a direction to disregard, for a lack of evidence to show the connection.

Here the Doctor did not admit the frequency of any referrals by plaintiff's counsel so that the conduct of the witness and the circumstances of his situation became practically the sole available material to show if any bias existed and cross-examination was not improper for that purpose. (Wigmore on Evidence, 3rd ed. ...

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